Forms of dispute resolution other than the courts of law.
Arbitration
This is an out of court method of settlement of civil disputes by arbitral tribunals which make arbitral awards as opposed to judgments.
The law relating to arbitration in Kenya is contained in the Arbitration Act2,. Under the Act, an arbitration agreement is an agreement between parties to refer to arbitration all or certain disputes arising between them.
Negotiation
“Meet and sit down and try and arrive at a conflict resolution without help of a third party”
Negotiation is any form of communication between two or more people for the purpose of arriving at a mutually agreeable solution. In a negotiation the disputants may represent themselves or they may be represented by agents and whatever the case, whether they are represented or not represented, they have control over the negotiation process.
Mediation
Mediation is a non-binding process in which an impartial third party facilitates the negotiations process between the disputants and it is that impartial third party who is called the mediator. The mediator has no decision making power and the parties maintain the control over the substantive outcome of the mediation.
Ombudsman
An ombudsman is a person who investigates complaints and attempts to assist the disputants to reach a decision. Usually this is an independent officer of the government or a public or quasi-public body. An ombudsman can be classified as an alternative dispute resolution mechanism.
Ombudsmanship is practiced in Sweden. In Kenya we have a Complaints Commission.
Early neutral evaluation (ENE)
This is where the parties to the dispute consult a 3rd party with regard to the dispute. The 3rd party then advises them on the likely outcome of the conflict should it be referred either to the Courts or to other formal means of dispute resolution.
Most Advocates usually carry out ENE.
Mini trial
This can either be judicial or private, and is similar to ENE above.
In a Judicial Mini Trial, the parties are already in Court and they go before a Judge. The synopses of their cases are presented and the judge advises on the likely outcome if the matter was to go to trial.
